Reasonable Doubt: Military court or Star Chamber? Omar Khadr and the principle against self-incrimination

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So, Omar Khadr is back in town, or rather, he’s at a maximum security federal prison in Bath, Ontario. Khadr’s story is one that continues to mystify me. I am well aware of the hyperbole or versions of his case that have been bandied about by the media, but in my brief experience of practicing criminal defence and given my life experience with human nature, what is happening and what has happened to Omar Khadr just does not add up.

First, I do not understand fully why he was incarcerated for so long in Guantánamo Bay. Second, I do not understand the offence for which he was being held. Third, I do not understand the politics, the rhetoric, the fear, the racism, and prejudice that surround Khadr.

The reason I don’t understand these things is that my life experience has me so far removed from anything like what Khadr has been involved in; I have never come close enough to meddling with the powers-that-be such that truths, justice, ideals, law, and facts begin to shift and dissolve before my very eyes. I was raised in a very privileged environment and now occupy a position where the closest I come to injustice is through my profession, not my personal life.

In modern times, we have built a system of justice that is ever working towards being fair, while trying to get at the truth in an efficient manner. (Well, these are the ideals towards which we strive.) Sometimes, it’s easy to forget that it has not always been this way and the institutions of justice that we have built on ideals do not exist without continued commitment to the underlying ideals.

Over 400 years ago, our concept of justice was just being formed. At that time in England there was a court called the Star Chamber. This was an elite court that was for all intents and purposes established its own brand of justice; a person accused in that court could be sentenced for an act that was not even a crime. The Star Chamber was also known for sentencing juries that returned verdicts that were contrary to the government’s interests and having people give evidence against themselves.

As a result of the abhorrence for this type of justice, the principle against self-incrimination developed and is a basic precept of our modern criminal justice system. Simply put, today, an accused person shall not be compelled to build the case against him or herself. This includes among many other things being forced to testify at one’s own trial against oneself. Further, the principle against self-incrimination means that the courts are wary about investigative methods that produce false confessions such as coercive interrogations. The courts do not like coercive interrogations because they override a person’s right to make a real choice to cooperate with the state, and, first and foremost, coercive interrogations produce unreliable evidence.

The court’s job is not to convict an accused person; the court’s job is to get at the truth of the matter put before it. Based on the truth that is assessed at trial, the court will convict or acquit the person charged with the crime.

Despite the fact that we value the principle against self-incrimination and inducing false confessions, there is a lot of pressure exerted by the state and by society at large (through the media) on an accused person to admit their guilt. From my experience in the criminal justice system, it is often harder to exercise your right to silence and a fair trial than it is to plead guilty and serve your sentence.

One thing I do understand about Khadr’s case, is one motivation for him to plead guilty; that much is clear based on the vastly reduced sentence offered for his plea. What I will never know, though, is what would have happened if our principles against self-incrimination were invoked to give Khadr a fair trial.

Laurel Dietz is a criminal defence lawyer at Cobb St. Pierre Lewis. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.

Comments (5) Add New Comment
jonnny
Dont forget the fact that he was a child when this occurred.
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FREE KHADER
If Mr. Khader went to jail for being a child soldier then what about all the poor kids in Africa who are forced to fight? Should the ICC start going after them too? Or is it that Canada can't stand to have its name tarnished by a 14 year old rebel. Has Canada not destroyed his innocent life enough already?

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Anonymous
If Osama Bin Ladin had not wired up Building 7 for controlled demolition and tricked NORAD into standing down, none of this would have happened.
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curiuos6348
The little prick is lucky they didn't hang him, let alone deport him to Canada to a life of luxury in our prison.
His family is proud of him, and his father, for being supporters of the Taliban.
They have even said that in interviews!
He should have been left in Gitmo, and have to serve his time for murdering US soldiers.
I don't care if you think he was a child and should have special treatment.
Other kids over there are packing bombs, bullets and rifles to kill UN troops!
He should never have been brought out of there alive!
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brother Omar
no child soldier should have to endure the agony Omar Khader has been inflicted
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